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Duhaime's Law Dictionary

Indian Canon Definition:

Also known as the Indian canon of statutory interpretation or the Indian canon of construction

In 1832, Justice Marshall of the United States Supreme Court wrote, in Worcester v Georgia:

"The language used in treaties with the Indians should never be construed to their prejudice."

In Carpenter v Shaw, Justice Stone wrote that in the interpretation of agreements between Indians and the government:

"Such provisions are to be liberally construed. Doubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith."

Note, however, this statement by Justice White of the Supreme Court of the United States, to which two other judges subscribed, in Montana v Blackfeet Tribe:

"I am mindful of the general rule that statutes are to be liberally construed in favor of Indian tribes. But more to the point, to my way of thinking, is the proposition that this rule is no more than a canon of construction, and a canon of construction is not a license to disregard clear expressions of congressional intent."

In Colorado River Indian Tribes, Justice Bates of the United States District Court (District of Columbia), wrote:

"The Indian canon of statutory interpretation ... only has a role in the interpretation of an ambiguous statute. Statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit....

"When the statutory language is clear, as it is here, the canon may not be employed."

In Ho-Chunk Nation, Justice Patrick Crooks of the Supreme Court of Wisconsin did not find it necessary to apply the canon because the statute was not ambiguous. But he did incorporate these words at ¶31 (arguably as obiter dicta):

"Under the Indian canon of construction, statutes passed for the benefit of dependent Indian tribes are to be liberally construed, with doubtful expressions being resolved in favor of the Indians."

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Duhaime Lawisms

Every gentleman ought to know a little of the law, says (Edward) Coke and perhaps, say we, the less the better.
G. Beckett in The Comic Blackstone (1876)

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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.